**A.rJSTI,v. TsxAf3**  **78711**

October 11, 1972

Honorable Preston Smith Opinion No. M- 1232 Governor of Texas State Capitol Building Re: Whether the Ft.Worth Austin, Texas 78711 City Ordinance conflicts with the State Constitution or statutes in its provisions for the regulation and licensing ofbail bondsmen in the citymunicipal courts, Dear Governor Smith: and related questions?
You have requested an opinion of theAttorney General of Texas in reference to the following questions:

"1
. **Does** the Fort Worth City Ordinance conflict with theConstitution and statutes of the State in amanner thatwould render the ordinance void in its entirety or in anypart orparts because of inconsistency asprohibited byArticle XI, Section 5 of the State Constitution andArticle 1165, V.A.T.C.S.?

**2.** Does the Fort Worth City Ordinance provide additions to the Constitution and statutes of the State in amanner that would render the ordinance void in its entirety or in anypart orparts because of inconsistency asprohibited byArticle XI, Section 5of the State Constitution andArticle 1165,V.A.T.C.S.?

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3. Does the Fort Worth City Ordinance in anymanner whatsoever violate theConstitution or statutes of the State? 4. Does the Fort Worth City Ordinance in anymanner whatsoever violate theConstitution of theUnited States?" This proposed ordinance submitted with your request would be an amendment toChapter 12 of the Fort Worth City Code (1964) by adding Sections 12-16 through 12-32. It isdesigned to regulate the entities which serve as sureties for compensation onbail bonds in themunicipal courts of the City of Fort Worth. Lhderthis ordinance the City of Fort Worth, which is ahome rule city, will create a licensing commission toprocess applications by such sureties, pursuant to the criteria named in Section 12-21 of the ordinance. Exceptions to the license requirement are enumerated in Section 12-18,which categories comply with Articles 17.01 through 17.38, Vernon's Code of Criminal Procedure. A one hundred dollar annual license fee is required by this ordinance (Section 12-29), and certain conduct isprohibited (Section 12-32). A penal provision (SECTION 4)provides for a fine not to exceed twohundred dollars forviolation of the ordinance. Our opinion is that the ordinance is a regulatory measure, and that the hundred dollar feedoes not appear tobe an unreasonable annual license fee as amatter of law. Our opinion is that there is no conflict between this ordinance and state or federal law which would invalidate anyportion of the ordinance. Questions 1 through 3may be analyzed together. Article XI, Section 5,of the Texas Constitution concerningcities with apopulation in excess of five thousand, requires that

II

. . .no charter or any ordinance passed under said charter shall contain anyprovision inconsistent with theConstitution of the State, or of the general laws enacted by theLegislature of this State;
. . ."
A similar prohibition is contained inArticle 1165,Vernon's Civil Statutes.

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The Texas Constitution, Article I, Section 11,provides in part that, "Allprisoners shall be bailable by sufficient sureties,
. . .' Rules for theposting of bail bonds are set out by the Texas Code of Criminal Procedure, Articles 17.01 through 17.38, Vernon's Code of Criminal Procedure. Article VIII, Section 1of the Texas Constitution states that: II

. . .[TheLegislature] may also impose occupation taxes, both upon natural persons and upon corporations, other than municipal. doing anybusiness in this State.
. . .provided

. . .that the occupations tax levied by any county, city or town for anyyear onpersons or corporations pursuing anyprofession orbusiness, shall not exceed one-half of the tax levied by the State for the same period on suchprofession or business."
It is clear that under Article 1165, and Texas ConstitutionArticle XI, Section 5, ahome rule city cannot enact rules and regulations contrary to the Constitution and the general law. City ofAustin v. Clendennen, 323S.W.2d 158, (Tex.Civ.App., 1959, error ref. n.r.e.). Nevertheless, ahome rule citv such as Fort Worth can exercise anypower not denied itby the Constitution or general statutes. Interstate Circuit, Inc. v. City of hllas, 247F.Supp. 906 (N.D.Tex. 1965), affirmed 366 F.2d 590 (5thCir. 1965).--
In order todetermine if there is a conflict between the ordinance and any statutory or constitutional provision, it is important tobear inmind thatwe should look to legislative acts not for grants ofpower to a city but only for limitations on the power available to cities. Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282 (1948). This stated in State v. City of La Porte, 386 S.W.2d 782 (Tex.Sup. 1965):

II

. . .The governing body of a city is not required to look to the Legislature for a grant ofpower to act. Such power is given by theConstitution. The governing body only looks to acts of the Legislature to ascertain if ithas placed any limitations on thepower

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to act as granted byArticle XI, Section 5. See Forwood v. City of Taylor, 147Tex. 161, 214 S.W.2d 282 (1948);Yellow Cab Transit Co., Inc. v. Tuck et al., Tex.Civ.App. (1938), 115 S.W.2d 455,wr. ref.; City ofHouston v. City of Magnolia Park, 115Tex. 101, 276 S.W. 685 (1925).
. . ." (atp. 785). This doctrine is supported by the Supreme Court's decision in City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.Sup. 1964), where the Court notes apresumption in favor of a city's ability to enact ordinances unless there is a clear indication by the Legislature to the contrary. The Court said:

" . . .Although thebroad powers granted to home rule cities by the Constitution, Article XI, Section 5,Vernon's Ann. St., may be limited by acts of the Legislature, it seems that should the Legislature decide to exercise that authority, its intention to do so should appearwith unmistakable clarity."
In view of this reasoning there isno apparant conflict or any consistency between the ordinance inquestion andArticles 17.01 through 17.38 ofVernon's Code of Criminal Procedure, ArticleXI, Section 5of the Texas Constitution orArticle 1165. The same holds true regarding Article I, Section 11of the Texas Constitution as there is no indication that this ordinance will interfere with the sufficiency of sureties. Another aspect of this question however, concerns an occupation taxquestion. In addition toArticle VIII, Section 1 of the Constitution, supra, Article 1.09, Title 122A, TaxationGeneral, Vernon's Civil Statutes, reads:

"NO city, county, or other political subdivision may levy an occupation tax levied by thisAct unless specifically permitted to do soby the Legislature of the State of Texas." Although the labels are often interchanged by various commentators, the Texas Supreme Court has consistently defined the difference between occupation taxes and licenses. Whereas occupation taxes, when authorized by the Legislature, are used primarily

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to raise revenue, theprimary purpose regulation, and itmust be reasonable of a license must be that of andnot arbitrary. Hurt v. Cooper, 130 Tex. 433, 110 S.W.Zd 896 (1937);H. Rouw Co. v. Texas Citrus Commission, 151Tex. 182, 247 S.W.2d 231 (1952). In comnlvinc with Article 1.09, supra, the Legislature has authorized ;e;y few occupation taxes. '-Our opinion is that this license fee is areasonable regulatory matter which in nomanner conflicts with any statutory provisions concerning occupation taxes. There is relatively little federal law concerning the subject of this ordinance with which the city's action might encounter conflict. See Title 6,United States Code. The United States Constitution contains nothing directly on thispoint other than the Eighth Amendment, which would not conflict with this ordinance. The United States Supreme Court has long indicated that the individual states would retain power to resulate corporations actinc as sureties within those states. Fidelity and Deposit Company ofMaryland v. Commonwealth of Pennsylvania, 240U.S. 319, 36 S.Ct. 298 (1916). As indrcated by Interstate Circuit, Inc., supra, the federal courts do recognize the Texas constitutional and statutory provisions in this area. Therefore, in our opinion the Fort Worth City ordinance does not violate the Constitution of theUnited States in anymanner. SUMMARY

The Fort Worth City ordinance does not conflict with norprovide additions to the Constitution and statutes of the State in amanner thatwould render the ordinance void in its entirety or in anypart orparts because of any inconsistency asprovided byArticle XI, Section 5of the State Constitution andArticle 1165,Vernon's Civil Statutes. Further,

'The Legislature has authorized occupation taxes in Title 122 A, Taxation-General, Vernon's Civil Statutes, on coin operated machines (Sections 13.02, 13.14); dealers inpistols (Section 19.0 (7));and operators ofbilliard tables (Section 19.01(10)). This also applies to certain liquorpermittees (Article 666-15a(l), V.P.C.) and certain beer licensees ,(Article667-3(h), V.P.C.).

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this ordinance in nomanner violates the Constitution or statutes of the State of Texas nor the Constitution of theUnited States.

Prepared by E. Bruce Curry Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E.Allen, Co-Chairman

John Banks Gordon Cass Bill Campbell Sam Jones

SAMUEL D. MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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